The St. Louis Republic. [volume], May 28, 1901, Page 3, Image 3

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THE REPUBLIC' TUESDAY. MAY 28. 1901.
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SUPREME
MR. JUSTICE BROWN WRITES
JUSTICE HARLAN HAS FEARS
OF LEGISLATIVE ABSOLUTISM.
Mr. Justice Harlan. In his dissenting opinion, says:
"I take leave to say that. If the principle now announced should ever receive
the sanction of a majority of this court, the result will be a radical and mis
chievous change In our system of government.
"We will, In that event, pass from the era of constitutional liberty, guarded
and protected by a written Constitution, Into an era of legislative absolutism. In
respect to many rights dear to all peoples who love freedom.
"In my opinion. Congress has no existence and can exercise no authority
outside of the Constitution. Stilt less Is It true that Congress can deal with new
territories just as other nations have done or may do with their new
territories.
"This nation Is under the control of a written Constitution which Is the su
preme law of the land and the only 6ource of the powers which our Government
or any branch or officer of it may exercise at any time or at any place.
"The .dea that this country may acquire territories anywhere upon the
earth by conquest or treaty and hold them as mere colonies or provinces. Is
wholly inconsistent with the spirit and genius, as well as with the words of the
Constitution.
"It will be an evil day for the American liberty if the theory of a govern
ment outside the supreme law of the land finds lodgment in our constitutional
jurisprudence."
BY A VOTE OF FIVE TO FOUR, SU PREME COURT
DECIDES CONGRESS CONTROLS THE COLONIES.
Washington. May 27. Justice Brown to
day delivered the opinion ot the Supreme
Court of the United States in the case ot
Downes b. Collector Bid vv ell of the Port of
New York. In -which suit was brought by
Downes to recover back duties to the
amount of $639.35. exacted and paid under
protest upon certain oranges consigned to
the plaintiff at New York, and brought
thither from the Port of San Juan in the
island of Porto Rico during the month of
ICovember, 1300.
- This case involved the question whether
merchandise brought Into the Port of New
York from Porto KIco since the passage 0(
the Foraker act is exempt from duty, not
withstanding the third section of that act.
which requires the pavment of "fifteen
per cent of the duties which are required
to be levied, collected and paid upon like
articles of merchandise imported from
foreign countries."
The Circuit Court of the United States
for the Southern District of New York sus
tained the Government in this position in
Imposing a dutj.
The Supreme Court affirmed the opinion
of the Circuit Court, saving:
IVr are; of opinion that the Island of
Porto Rica Is m. territory appurte
nant anil belonainir to the United
States, but not a part of the linlted
States within the revenue elanae of
the Conatltutlont that the Foraker
act la constitutional o far aa it Im
poses duties npon Imports from such
Island, and that the plaintiff cannot
recover back the duties exacted In
this case.
'the opinion of the court went into the case
very fully. Justice Brown, early In hl opin
ion, outllred the distinction between this
case and the De Lima case, which had Just
been decided, saving:
In the case of De IJma vs. Bldwell. we hold
that upon tne ratification of the treaty of peace
with Saln. Porto Rico ceased to be a foreign
countr. and that duties vvcre no longer collect
ible upon merchandise brought from that Island.
We are. now asked to hold that It became a part
of the United States within that provision of
the Constitution which declares that "all duties.
Imposts and excises shall be uniform throughout
the United States " If Porto Rico be a part of
the United States, the Foraker act. Imposing
duties upon Its products. Is unconstitutional, not
onlv by reason of a violation of the unlformltv
clause, but because, bv section 0 vessels bound
to or from one State "cannot be obliged to enter,
i clear or pay duties in another."
The case also Involves the broader question
w (ether .the revenue clauses ot the Constitution
extend, of their own force, to our newly ac
quired territories. The Constitution Itself does
not answer the question. Its solution must be
found In the nature ot the government created
bv that Instrument. In the opinion of its con
temporaries, in the practical construction put
upon It by Congress, and In the decisions ot this
cou-t.
Formation of the Government.
Justice Brown then entered upon a review of
the formation of the Government and the con
stitutional provision requiring that "duties. Im
posts and excises shall be uniform throughout
the United States." saying that "It la explained
by subsequnt provisions of the Constitution that
'io tax or duty shall be laid on articles ex
ported from any Stato " and "no preference shall
lie given by any regulation of commerce or rev
enue to the porta of ono State over those of
another, nor snail vessels bound to or from one
SUta be obliged to enter, clear or pay dutlea
in another." In short, he concluded on that
point th Constitution deals with States, their
people and, their representatives"
The acquisition of territory and tho formation
of TtrrUorles ware discussed and many au
tnealxlas emoted. Aa a result ot these clta-
, the justice uua aown tne xouowmg genera.
EUnnsaUnx, then, from the opinion of this
court all expressions unnecessary to the dispo
sition of the particular case, and gleaning there
from the exact point decided In each, the fcl
wwloaT propositions may be considered as es
tsfettsnaax 1. TUsc the District of Columbia and the Ter
ritorial are not States, within the judicial olause
of tba Constitution giving Jurisdiction In cases
between cttlxens of different States.
a. rh.t Territories are not States within the
meaning of tho Revised statutes, section 709.
permitting writs ot error from this court In cases
where the validity ot a Etats's statute la drawn
tn Question
. That the District ot Columbia, and the Ter
ritories are States, a that word is used. In
treaties with foreign Powers, with respect to the
ownership, disposition and inheritance of prop-
4. 'That tb Territories are not within the
elans of the Constitution providing for the cre
ation of a Supreme Court, and such inferior
courts as Congress may see (It to establish.
t. That the Constitution, does not apply to
! -n-tH. nr in trials therein conducted.
and that Congress may lawfully provide for such
trials before consular tribunals, without the In
tervention of a grand or petit Jurj.
6. That where the Constitution has been onoa
formally extended by Congress to Territories,
neither Congress nor the territorial legislature
can enact laws inconsistent therewith.
Dred Scott Case.
In his opinion. Justice Brown referred at
length to the decision of Chief Justice Ta
ney In the Dred Scott case, giving especial
consideration to the sentiment expressed by
him that "there Is no power given by the
Constitution to the Federal Government to
establish or maintain colonies bordering on
the United States, or at a distance, to be
ruled and governed at its own pleasure; and
If a new State Is admitted it needs no fur
ther legislation by Congress, because the
Constitution Itself defines the relative rights
and powers and duties of the State, and
the citizens of the State, and the Federal
Government. But no power is given to ac
quire a territory to be held and governed
permanently In that character."
Justice Brown expressed the opinion that
It was unfortunate in view of the excited
condition of tne country at the time the
Scott opinion was rendered. Just before the
beginning of the Civil War. that the Chief
Justice had felt Impelled to discuss the
question upon Its merits. "It is," he'said,
"sufficient to say that the country did not
acquiesce in the opinion, and that the Civil
War, which shortly thereafter followed, pro
duced such changes In Judicial, as well as
public sentiment, as to seriously Impair tha
authority of this case."
He added:
The power to prohibit slavery In the Terri
tories f so different from the power to impose
dntles upon territorial products and depends upon
such different provisions of the Constitution that
they can scarcely be considered as analogous,
unless we assumed broadly that avery clause of
the constitution attached to the Territories as
well as to the States a claim quite Inconsistent
with the position of the court in the Canter
case. The difficulty with the Dred Scott case
was that the court refused to make a distinction
between property in general and a wholly ex
ceptional class of property.
L Powers of Congress.
Taking up the case in hand, the Justice
continued his opinion, saying:
The practical Interpretation put by Congress
upon the Constitution has long been continued
and uniform to the effect that the Constitution
is applicable to territories acquired by purchase
or conquest only when and so far as Congress
shall so direct. Notwithstanding Its duty to
"guarantee to every State in this Union a re
publican form of government." Congress did not
hesitate In the original organisation of the ter
ritories of Louisiana. Florida, the Northwest
Territory, and Its subdivisions ot Ohio. Indiana.
Michigan. Illinois and Wisconsin, and still more,
recently la the case of Alaska, to establish a
form of government bearing a much greater an
alogy to a British crown colony than a republican
State of America, and to vest the legislative
power either In a Governor and Council or a
Governor and Judges, to be appointed by the
We are also of opinion that power to acquire
territory by treaty implies not only the power to
em em such territory, but to prescribe upon what
terms the United States will receive its inhab
itants and what their status shall be in what
Chief Justice Marshall termed the "American
-.- .uhmi tn h nn middle ntuind. between
this position and the doctrine that If their In
ert aa mh iniraniiifij avwu -
COURT'S DECISIONS IN COLONIAL CASES-
THE OPINIONS IN THE DE LIMA AND DOWNES SUITS, WHICH INVOLVE OUR RELATIONS WITH THE NEWLY ACQUIRED ISLAND P0S-
SESSIONS-STRONG DISSENTING OPINIONS.
nexatlon. citizens of the United States their chil
dren thereafter horn, whether savages or civilized,
are such and entitled to all the rights, privileges
and Immunities of cltlien if such be their
status the consequences will be extremely serious,
indeed. It Is doubtful If Congress would ever as
sent to the annexation of territory upon the con
dition that Its inhabitants, however foreign they
irav be to our habits, traditions and modes of
life, shall become at once citizens of the United
State in all Its treaties hitherto the treaty-making
power has made special provision for this sub
ject. Grav e apprehensions of danger are felt by many
eminent men a fear lest an unrestrained porses
slon of power on the part of Congress may lead
to unjust and oppressive legislation, tn which the
natural right of territories or their Inhabitant
mav be engulfed In a centralised despotism. These
-"" however. find no Justification In the action
or Congress tn the part century, nor In the con
duct or the British Parliament toward It ouil
'n,,Pssesslons " American Revolution.
Whatever may be finally decided by the
American people as to the status of these islands
end their Inhabitants whether they shall be In
troduced Into the sisterhood of S'ates. or be
permitted to form Independent governments It
doe not follow that. In the meantime, awaiting
that decision, the people are in the matter of
personal rights unprotected by the provisions of
our Constitution and subject to the merely arbi
trary control of congress. Even If regarded as
aliens they are entitled, under the principles of
the Constitution, to be protected In life, liberty
and propertv.
Iarge powers must necessarily be Intrusted to
Congress In dealing with these problems, and we
are bound to assume that thej will be Judicious
ly exercised That these power may be abused
is possible But the same, may be said of Its
powers under the Constitution as well a out
side of It. Human wisdom has never devised a
form of government so perfect that it may not
be perverted to bad purposes It Is never con
clusive to argue against the possession of cer
tain powers from possible abuses of them. It Is
safe to say that If Congress should venture upon
legislation manifestly dictated by selfish Interests.
It would receive quick rebuke at the hands of
the people. Indeed, It Is scarcely possible tt-st
Congress could do a greater injustice to these
islands than would be Involved in holding that It
could not Impose upon the States taxes and ex
cises without extending the same taxes to them.
Such requirement would bring them at once
within our Internal revenue system, including
stamps, licenses, excises and all the parapher
nalia of that atem. and applying It to Terri
tories which have had no experience of this
kind, and where It would prove an Intolerable
burden i
Did !fot Foresee the Future.
Commenting 'upon the virtual absence of
provMon in the Constitution for the ac
aulsltlon of terrltnrv. Jiintlce Rrnwn snvs
It can only be accounted for on the ground
him me iraraers oi tnat instrument oia
not foresee the country's future possibili
ties. In that respect. He says:
If It be once conceded that we are at liberty to
acquire foreign territory, a presumption arises
hit our power with respect to such territory
Is the same power which other nations have
been accustomed to exercise with respect to ter
ritories acquired by them. If. In limiting the
power which Congress wa to exercise within
the United States, it was also Intended tn limit
It with regard to such territories as the people
of the United States- should thereafter acquire,
such limitations should have been expressed. In
stead of that, we find the Constitution speaking
onlv to states, except In the territorial clause,
which Is absolute In It term and suggestive ot
no limitations upon the, power of Congress In
dealing with them. The State could only dele
gate to Congress such- power as they themselves
possessed, and, as 'they had no power to acquire
new territory, they had none to delegate In that
connection
THE LOGICAL INFERENCE FROM THIS IS
THVT IF CONGRF.SS HAD POWER TO AC
QUIRE NEW TERRITORY WHICH IS CON
CEDED. THAT POWHR WAS NOT HAM
PERED BT THE CONSTITUTIONAL, PROVIS
IONS Case on Ita Merita.
In the last paragraph of his opinion, before .
announcing tne court s opinion. Justice
Brown said:
Patriotic and Intelligent men may differ widely
as to the deslrabteness ot this or that acquisi
tion, but this Is solely a political question. We
can only consider this aspect of the case so far
aa to say that no construction of the Constitu
tion should be adopted which would prevent Con
gress from considering each cas upon It merits,
unless the language of the Instrument Impera
tively demand It. A false step at this time might
be fatal to the development at what Chief Justice
Marshall called "the American Empire."
Choice In some cases, the natural gravitation
of small bodies toward large ones In others, the
result of a successful war In still others, may
'bring about conditions which would render the
annexation of distant possessions desirable It
those possessions are Inhabited by alien races,
differing from us In religion, customs, laws,
methods of taxation and modes of thought, the
administration ot government and Justice, ac
cording to Anglo-Saxon principles, may for a
time be impossible; and the ouestlon at once
arises whether larce concessions ought not to be
made for a time, that, ultimately our own theo
ries may be carried out. and the blessings of a
free government under the Constitution extended
to them
WE DECLINE TO HOLD THAT THERE IS
ANYTHING IN THE CONSTITUTION TO FOR
BID SUCH ACTION.
JUSTICE WHITE DELIVERS
A CONCURRING OPINION.
Following Justice Brown's opinion In the
Downes case. Justice White delivered an
opinion, tn which he said Justices Shiran
and MeKenna united, concurring In the de
cree afflnnlnr the Judgment of the Downea
case, but placing It on grounds which he
said were not only different from, but in
conflict with, thoss expressed by Justice
Brown.
He said the question at issue was whether
the provision of the Constitution airing Cong-re's
power to lay duties. Imposts and excises, but
equlrlnR that they should be uniform "through
out ths United States." had been violated by
the Foraker set Imposing duties on goods corning
from Porto Rico Into the United States. The
propositions, elaborately argued at that trial, that,
the Government of the United States being- cre
ated by the Conrtltutton. that Instrument, where
tt limits the power of ths Oovemment. does so
everywhere wherever Its authority ts exerted,
were conceded.
There never could be any serious question that
when the Government of the United States ex
ercises an authority which tbe Constitution con
fers that the applicable limitations of the Con
stitution corrtrol It. Whilst this was true uni
versally, in every case, the question was not
whether the Constitution followed the flag. but.
granting that It did so. what provision was ap
plicable to particular cases? The cases which It
wss said wars an exception were certain general
limitations In th Constitution In favor of liberty
and property which withdrew all power from
Congress. Such limitations were everywhere ap
plicable, and. of course, could never be trans
gressed. Im-lew of this, the opinion went on. "there Is
In reason then no room tn this eass to contend
that Congress can destroy the liberties ot the
people of Tporto Rico by exercising In their regard
powers against freedom and Justice which the
Constitution had absolutely denied."
Sole smd Only Issue Imvolved.
The sole and only Issue Is. Had Porto Rico, at
the time of the passage of the action In question,
been Incorporated into and become an Integral
part of the United State?
Considering this question. Justice White
affirmed that the rule of International law
was that the relation which an acquired
country would bear to the acquiring coun
try. In the absence of treaty stipulations,
nas to be determined by the country con
formably, to Its Institutions; The United
States possessed the same txwera on this
subject as any other nation.
Justice White then went exhaustively In
to the history ot theUnlted States, and of
Its acquired territories. In support of his
assertion that our history from the begin
ning had manifested that this power was
possessed by the United States. Continuing,
hesald:
An acknowledgment of our right to acquire
territory, coupled with a contention that, when
acquired, the territory was absolutely and un
fflvslllnritTIr IncstBoraUd Into the United States.
ma to admit the power to acquire and Immedi
ately to deny Its beneficial existence.
To hold that the treaty-making power can
not insert condition In acqulrlnr would deprive
that power of a necessarv attribute and would
confer upon It the authorlt) to destroy the
Government of the Unite.! States If million of
Inhabitant of alien territory, if acquired by
treaty, can. without the desire or consent of the
people of the United States, speaking throuah
Congress, be Immediately and Irrevocably In
corporated Into the United State, the whole
structure of the government can be overthrown.
While thus aRgrandlilna; the treaty-making
poner on the one hand, the construction at tho
nnmc nine minimizes u on the otner. in tnat it
ritory upon any condition which would guard the
people of the United State from the evil of Im
mediate Incorporation What also become of the
popular branch of Congress, which, though It
agree to the Incorporation of alien race, would
be Impotent to prevent Its accomplishment?
"Conirrcss Incorporates Territory."
It Pi then, aa I think. Indubitably settled by
the principle of the law of nations, by the na
ture or the Government created under the Con
stitution, by the exnress and Implied powers
conftred upon that Government by the Contltu
tlon, bv the mod In which those powers have
been executed from the lieglnnlng, and by an un
broken line of decision of this court, first an
nounced by Marshall and followed and lucidly
expounded by Taney, that the treaty-making
poner cannot incorporate territory Into the
United States without the expressed and Im
plied assent of Congress; that It may Insert In
a treaty conditions against Immediate lncorpora.
tlon.
It must follow, therefore, that where a treaty
CHIEF JUSTICE FULLER AND OTHERS, DISSENTING,
UPHOLD SUPREMACY OF THE CONSTITUTION.
The chief dissenting opinion in the
Dowries case was announced by Chief Jus
tice Fuller. Justices Harlan, Brewer and
Peckham Joining in the dlssont. He said
the majority, though widely differing in
their reasoning, seemed to concur In the
view that Porto Itlco belongs to the United
States, but nevertheless is not a part ot
the United States subject to the provisions
of the Constitution in respect to taxes.
The Foraker act, under which the duties
were levied, created a complete form of
government for Porto Rico, with a spe
cial provision that the taxes levied In the
United States on Porto Rlcan exports
should be held as a special fund for i'orto
Rico's benefit. It was udmltted that on its
face the part of the ntt with reference to
duties did not comply with the rule of uni
formity prescribed by the Constitution.
Continuing, the opinion says:
The constitutional unlformfty is a geographical
uniformity, but It wa said that Congress tn at
tempting to levy these dutlea was not exercising
power derived from the first clause of setclon 8.
or restricted l It. because. In dealing with the
Territories. Congress exercises unlimited powers
of government, and. moreover, that these dutlea
are merely local taxes
This court. In 1ES). when Marshall was Chief
Justice, and Washington. William Johnson. Liv
ingston, Todd. Duvall and Storv were his asso
ciates, took a different view of the power of
Congress In the maiter of laving and collecting
taxes, duties. Imposts and excises In the Terri
tories, and It ruling In Loughborough vs. Blake,
5 Wheat, 317, has never been overruled.
Chief Justice Marshall Overruled.
It Is cald. In one of the opinions of the ma
jority, that the Chief Justice "made certain ob
servations which have occasioned some embar
rassment tn other cases " 1 agree that the opin
ion of the court delivered by him must be em
barrassing In this case, for It Is necessary to
overrule that decision In order to reach the re
sult herein announced
Chief Justice Marshall In that ease. In consid
ering the provision requiring thst "all duties,
Imposts and excises shall be uniform throughout
the United States." said: "Does this term (the
United States) designate the whole, or any por
tion of the American Empire? Certainly this
question can admit of but one answer. It Is the
name given to our great Republic, which Is com
posed of State and Territories.
'The District of Columbia, or the territory
west of the Missouri. I not less within the
united States than Maryland or Pennsylvania:
and It Is not less necessarv. on the principles
of our Constitution, that uniformity In the Im
position ot Imposts, duties and excises should be
observed In the one than In the other. Since,
then, the power to lav and collect taxes, which
Includes direct taxes. Is obviously coextensive
with the power to laj and collect duties. Imposts
and excises, and since the latter extends through
out tha United State. It follow that the power
to Impose direct taxes also extends throughout
the United States."
Continuing, Chief Justice Fuller said:
"The nronosltlnn thnt Chief Justice, Mar-
Shall had erred In his opinion, and that the
rule of uniformity was a limitation to the
States as such, was declared to be whollv
unwarranted, and quite a number of cases
were cited In which the Supreme Court and
Ccngress.notably by the Thirteenth and Fif
teenth amendments to the Constitution, had
sustained the view that the United 8tates
meant Territories, as well as States"
Constitutional Dnlivark Thrown
Down.
Chief Justice Fuller then advanced the
proposition enunciated In Marbury vs. Mad
ison, first Crnnch, that the Constitution was
written in order to define and limit and
keep within its restricted boundaries all
persons and departments of Government,
and was meant to leave no room for the
play and action of purely personal and
arbitrary power. He added:
From Marbury vs Madison to the present
day no utterance of this court has Intimated a
doubt that, in Its operation on the people by
whom and for whom It was established the
rational Government is a Oovemment of enumer-
ated powers, the exercise nf whtasi la restricted
he
' means appropriate and plainly
fimnl nn. and which are
"not prohibited, but consistent with tha letter
ai.u iv.ui oi tiie constitution "
ilk puAeis ueieetuert Dy the people to their
agents are not enlarged by the expansion of the
domain within which they are exercised. When
ths restriction on the exercise ot a particular
power by a particular agent Is ascertained, that
is an end of the question.
To hold otherwise 1 to overthrow the bails
of our constitutional law. and, moreover. In
effect, to reassert the proposition that the States
and not the people created the Government.
There are many prohibitory clauses In the
Constitution, and this court repeatedly has
given effect to them In respect ot the Territories
and the District of Columbia.
The power of the United States to acquire terri
tory by consent, by treaty or by discovery and
occupation is not disputed, nor Is the proposition
that In all international relations, interests and
responsibilities the United States Is a separate,
independent and sovereign nation, but It does not
derive Its powers from International law, which,
though a part of our municipal law. Is not a
part of the organic law of the land.
The source of national power In this country
Is the Constitution of the United States, and the
Oovernment. as tn our Internal affairs, pos
sesses no Inherent sovereign power not derived
from that Instrument and consistent with Its
letter and spirit.
With reference to the paragraph In the
treaty of peace declaring that "the civil
righto and political status of the native in
habitants of the territories hereby ceded
to the United States shall be determined by
Congress," the Chief Justice said this was
nothing more than a declaration of the ac
cepted principles of International law ap
plicable to the status of the Spanish sub
jects and. of the native Inhabitants.
Chief Justice Fuller absolutely rejected the
contention that the rule ot uniformity was
not applicable to Porto Rico because it had
not been Incorporated Into and become an
Integral part of the United States. The
word Incorporation had no occult meaning,
and whatever Its situation before, the For
aker act made Porto Rico an organised Ter
ritory of the United States.
Result ,of Majority Opinion.
He could not accept the view that even
after organised "Congress has the power
to keep it, like a disembodied shade. In an In
termediate state nf ambiguous existence
for an Indefinite period, and more than that,
that after it has been called from that
Umbo commerce with It Is absolutely sub
ject to the will of fnneress, irrespective ot
constitutional provisions."
The concurring opinion of the majority
recognized that "Congress, In dealing with
the people of new territories or possessions,
is bound to respect the fundamental guar
antees of life. liberty and property, but as
sumes that Congress Is not bound. In those
territories or possessions, to follow the rules
of taxation prescribed by the Constitution.
And yet the power to tax Involves the power
to destroy and the levy of duties touches
all our people In all places under the Juris
diction of tne Government."
The logical result is that Congress may
prohibit commerce altogether between the
States and territories, and may prescribe
one rule of taxation In one territory, and a
different rule In another. Continuing, he
said:
That theory assumes that the Constitution cre
ated a Government empowered to acquire coun
tries throughout the world, to be governed by
different rales than those obtaining In the origi
nal States and Territories, and substitutes for
the present system of republican government a
system ot domination over distant Provinces In
the exercise of the unrestricted power.
In our Judgment, so much of the Porto Rlcan
act as authorised the Imposition of these duties
Is Invalid, and plaintiffs were entitled to recover.
Some argument was made as to general con
sequences apprehended to flow from this result,
but the language of the Constitution Is too plain
and unambiguous to permit Its mesnlng to be
thus Influenced.
Again, It ts objected on behalf of the Gov
ernment that the possession of absolute power
Is essential to the acquisition of vast and dis
tant Territories, and' that we should regard the
situation as It Is to-day rather than as It wsa
a century ago.
But It must be remembered that, as Marshall
and Storey declared, the Constitution was framed
for ages to come, and that tbe sagacious men
who framed It were wen aware that a mighty
future waited 'on their work. .
They may not. Indeed, have deliberately con
sidered a triumphal progress ot the nation, as
each, around, the earth, -but, as Marshall wrote:
i"It is not enough to say that this particular
case was not In the mind of tbe convention when
the article was framed, nor or tha American
people -when It was- adopted. It la nscesssry to
contains no conditions for Incorporation, and,
above all. where It not onh haa no such con
ditions, hut expressly provides to the contrary,
that Incorporation does not arise until. In the
wisdom of Congress, it Is deemed that the acquired
territory has reached that Mate where It Is
proper that It should enter Into and form a part
of the American family.
Attention was then called to the fact thnt
the trenty of peace expressly provided that
the civil rights and political status of the
Inhabitants of the Islands should bo deter
mined by Congress, and the conclusion was
stated ns follows:
The result of what has been said la that
whim. In an International sense, I'orto Itlco
was not a foreign countr. It wai foreign to the
United State In a domestic seme. because the
Island had not been Incorporated Into the United
States, but was merely appurtenant thereto, aa
a possession As n necessary consequence, the
Impost In question assessed on merchandise
(.omlna; from I'orto Rico Into the United States
after the cession wa within the power of
Congress, and that body ws not. moreover, ns
to such Impost, con'roll-d by the clause re
quiring that Impost should lie uniform through
rut the United Mates; In other word", the pro
vision of the Constitution Just referred to was
not applicable to Congress In legislating fur
Torto Itlco.
In conclusion, it was said that the quca
tion when Porto Itlco was to be Incorporat
ed was a political question, to he determined
by the American people, speaking through
Congress, and was not for the courts) to determine.
go farther, and to say, that had this particular
rase been suggested the language would have
hen so vnrled a to exclude It. or It would hive
been made a special exception "
This cannot be said, and, on the contrary. In
order to permit the successful extension of our
Institutions, the reasonable rresumptlon Is thit
the limitations on the exertion of -rbitrarj
power would have been marie more rlnorous.
Justice Harlan Illasrntlns Opinion.
Justice Hnrlan then announced I1I3 con
currence with the dissenting opinion Just
delivered by the Chief Justice. He regarded
the Fornker act as unconstitutional In Its
revenue provisions, and believed that Porto
KIco, after the ratification of the treaty
with Spain, became a part of the United
States Referring to the majority views
that the pow.r of our Government with re
spect to new territory is tho same povrer
which other nations had been accustomed to
exercise, Mr. Harlan an Id:
I take leave to say that if the principles now
announced should ever receive .he sanction of
a majority of this court, the result will be a
radical and mlsehlevou ihange In our system
of government. We will, in that event, pass
from the ere of constitutional liberty, guarded
and protected by a written Constitution, into
nn era of legislative absolutism In respect of
man rights that are dear to all peoples who
love freedom.
In my opinion. Con-res has no existence and
can exercise no authority outside of the Con
stitution still less la It true that nongres ran
deal with new territories Jut aa other nations
have done or may do with their own territories.
This nntlon Is under the control of a written
Constitution, which J the supreme law of the
land, and the only source nf the powers which
our Government, or any branch or officer of It,
may exercise at any time or at anyplace.
Monarchical and despotic Governments, unre
strained In their powers bj written constitutions,
may do with newly acquired territories what this
Government may not do consistently with our
fundamental law.
The Idea that this country may acquire terri
tories anywhere upon the- earth, by conquest or
treaty, and hold them a mere colonies or prov
inces. I wholly Inconsistent with the spirit and
genius, as well aa with the words, nf the Consti
tution. The glory of nnr American system of
government Is that It wa created by a written
Constitution, which protect the people against
UNDER THIS DECISION CONGRESS MIGHT EVEN IMPOSE
DUTIES UPON ALASKAN IMPORTS-ATTY. GEN. GRIGGS.
Clause of the Constitution That
Has Been Restricted.
The following is the revenue
clause of the Constitution which
the Supreme Court restricts:
"But nil duties, imposts and ex
cises shall be uniform throughout
the United States." Sertion 8, sir
ticle 1 of the Constitution.
The Supreme Court holds that
this section of the Constitution
does not apply to acquired terri
tory. "Under this decision Congress
might even impose duties upon im
ports from the Territory of Alas
ka," Former Attorney General
Griggs in a statement j-esterday.
DECISION IN THE DE LIMA SUIT HOLDS THAT
PORTO RICO IS A PART OF UNITED STATES.
The first case decided was that of Ellas
8. A. De Lima ct al., plaintiffs In error,
against George R. Bldwell, Collector of tho
Pork of New York, the case coming to the
Supreme Court from the Circuit Court of
the United States for the District of New
York. The decision was rendered on behalf
of the majority of the court by Justice
Brown, the opinion being concurred tn by
all the Justices except Justices MeKenna,
Shlras and White. The decision hung up
on the case coming from the State of New
York Involving the levying of $12,000 in
duties on goods imported from Porto Rico
Into the United States, the collection of the
duties having been sustained by the lower
court.
In effect the decision was that territory
acquired by the United States Is a part of
the United States and not foreign terri
tory, and that such Import duties could not
be levied. The decision of the lower court
was reversed.
Justice Brown announced In the begin
ning of his decision that the court un
doubtedly has Jurisdiction In this case. He
said the case raised the single question
whether territory acquired by the United
States by cession from a foreign Power
remained a "foreign country" within the
meaning of the tariff law, and added:
The question Involved In this case Is not
Whether the susrara were Imnnrfaht mrttrimm tin.
der the tariff laws, but whether, coming as they
did
rrom a port aiiegea to ne aomesuc, xney
were Imported from a foreign country In other
WOrila whlhar lh,v Wrm ImnnMut at all aa
that word ts denned In Woodruff vs. Parham.
We think the decision In the Fassett case Is con
clusive to tne enect mat. if the question be
whether the sugars were Imported or not. such
Suestlon could not be raised before the Board of
leneral Appraisers and that whether they were
Imported merchandise for the reasons given In
tbe Fassett case, that a vessel 1 not an im
portable article, because the merchandise was
not brought from a foreign countrv. Is Imma
terial. In either case the article Is not Im
ported. Conceding, then, that section 3011 has been
repealed and that no remedy exists under the
customs administrative act. does It follow that
no action whatever will lie? If there be an ad
mitted wrong, the courts will look far to supply
an adequate remedy. If an action lay at com
mon law the repeal of sections 2331 and Mil.
regulating proceedings In customs rases (that Is,
turning upon the classification of merchandise)
to make way for another proceeding before the
Board of General Appraisers tn the same das
of cases did not destroy tiny right of action
that might have existed as to other than cus
toms cases, and the fact that by section 35 no
Collector snail be liable "for or on account of
any rulings or decisions as to the classification
ot such merchandise or the duties charged there
on, or the collection of any dues, charges or
duties on or on account of any such merchan
dise " or any other matter which the Importer
might have brought before the Board of General
Appraisers, does not restrict the right which
the owner ot the merchandise might have again't
the Collector In cases not falling wtthln the cus
toms administrative act.
IF THE POSITION- OP THE GOVERNMENT
BE CORRECT. THE PLAINTIFF WOIILDBH
REMED1IJSS: AND IF A COLLECTOR
SHOULD SEIZE AND HOLD FOR DUTIES
GOODS BROUGHT FROM NEW ORLEANS OR
ANY OTHER CONCEDEDLY DOMESTIC rOKT.
TO NEW YORK. THERF) WOULD BE NO
iJETHOD OF TESTING HIS RIGHT TO MAKE
SUCH SEIZURE IT IS HARDLY POSSIBLE
THAT THE OWNER COULD HE PLACED IN
THIS POSITION.
Action Properly Brought.
After citing numerous opinions and author
ities to show that the action ot the plain-
tins In error was properly aruunv. vi.o
court holds that "whether these cargoes ct
sugar were aubject to duty depends nolely
upon tbe question whether Porto Rico was
the exercise of arbitrary, unlimited power, and
the limits of which miy not be passed by the
Government it created, or b any branch of It, or
even by the people who ordained It, except by
amendment.
It will be an evil day for American liberty if
the theory of a government outside of the su
preme law of the land finds lodgement in our con
stitutional Jurisprudence.
"Constitution Is Over Congress."
Justice Harlan also commented on the Idea
that Congress could "legislate the Consti
tution Into contiguous territory."
Such .1 view, he said, might well cause
surprise. If not alirm. Congress had no
existence except by virtue of the Constitu
tion. Ho pointed out that the majority
opinion suggested thnt conditions might
arise when the annexation ot distant pos
sessions would become desirable, so thnt
concessions might well be made for a time,
that ultimately our own theories might be
carried nut. Hut Mr. Harlan dissented
from any such theory of our governmental
system. He said:
Tli "expanding future of our rounto." Justl
fjlng tho belief that the Unltid bates Is to
become whit is called a "world power." of
which so much was heard In the nrgument. does
not Justlfv nnv such Juggling with the words
of the Constitution as would authorize the
couits to hold that the words "throughout the
United Wntets" In the taxing clause of the Con
stitution do not embrace a "terrltorj of the
United Stntes." This Is a distinction which I
am unable to make, and which I do not think
ought to be mnde when we are endeavoring to
ascertain the meaning of a great Instrument of
government.
The addition of Porto Rico to the territory of
the United Stntes has been recognized by direct
nctlon upon the p-irt of Concrete. It has legis
lated In recognition of the treaty with Spain. If
Porto Rico did not bv such nctlon become a part
of tho United tate it did become such, at
least, wlien I'nngre-s passed the Koraker act.
I cinnot believe that Congress may Impose any
dutj. Impost or evcle with respect to that ter
rltorj and Us people, which Is. not consistent
with the constitution 1! requirement that all du
ties, imposts and exiise- shall be uniform
throughout the United States.
JUSTICE GRAY CONCURS,
BRINGING OUT NEW POINT.
Justice- Gra announced h.g concurrence
In the mijorIla conclusion In the Downes
case, and In doing Jo said. In substance:
The cMl Government or the UnltM Statea
cannot Mttpnri Immediately and of Its own force
orr terrltorv acquired by war. Such territory
mut nceKnrIIy. In the flm Instanrp, be gov
erned by th. military prvRcr under the control
of the President. n Commander-in-Chief. CMl
Korrnment cannot tnk effect an eoon an pos
sesion I acquired under military aifthorlty. or
even as noon ai that pnswq (don Is confirmed by
trraty. It can be put In operation only b th
action of the approprlit political department
of the Government, at such tlm ard in such de
jcre ait that department may determine. There
must of necessity bo a transition period.
So Ion a Congreps ha not incorporated the
territory Into tbe United Stated, neither mili
tary occupation nor cession by treatv makes the
conquered territory domestic territory In the
nene f reenut law?. Dot those laws concern
ing foreign countries remiln applicable to th
crnquered territory until changed by Congress.
Such wan the uranltnou. opinion of thin court,
as declared by Chief Juitlce Taney n Fleming
s Page, P-How.
If CongreFd 1. not ready to construrt a com
plete government of thp conquered territory it
may establish a temporary government, which Is
not subject to all the restriction of the Consti
tution. Such wai th effect of the act of Con
gress of April 12, lWO. entitled "an act tempo
rarily to provide revenues and a civil govern
ment for Porto Rico and for other purpose,."
The system of duties temporarily established by
that act during the transition period was within
tho authority of Coneress under thn Con frtittittan
of the United States.
l;t i
TJsej ,ii-ibi
mmtmsm
t
EX-ATTORNEY GENERAL. GRiaQS.
a foreign country at the time the sugars
woro rhlpped, since the tariff art of July
24. 1S97, commonly known as the Dlngley
act. declares that 'there shall be levied,
eclitcted and paid upon all articles Imported
rroin ro'eiftn countries certain amies tnere
In .specified. A foreign country wns e
flr.ed by Chief Justice Marshall and Justice
Stotey to bo one exclusively within the
sovereignty of a foreign nation, and with
out the sovereignty of the United States.
"The status of Porto Rico was this: The Island
had been for some months under military occu
pation by the United States as a conquered coun
try when, by the second article of the treaty ot
peace between tho United States and Spain,
signed December 10. ISM and ratified April 11.
1S89. Spain ceded to tha United States the Island
of Porto Rico, which has ever since remained In
our poeseslon. and has been governed and admin
istered by us. if the case depended tolely upon
those facts, and the question were broadly pre
sented whether a country which had been ceded
to us. the cession accepted, possession delivered
and the Island occupied and administered without
Interference by Spain or any other Power, was
a foreign country or domestic territory, it would
seem that there could be a little hesitation In an
swering this question as there would be in deter
mining tho ownership of a house deeded In fee
simple to a purchaser, vvho had accepted the deed,
gone Into possession, paid taxes and mnde Im
provements without let or hindrance from his
vendor. BUT IT IS EARNESTLY INSISTED B
THE GOVERNMENT THAT IT NEVER COULD
HAVE BEEN THE INTENTION OF CONGRESS
TO ADMIT PORTO RICO INTO A CUSTOMS
UNION WITH THE UNITED STATES. AND
THAT. WHILB THE ISLAND MAY BE TO A
IKKTAIN EAIEST UUMKBTIU TEIUUTUHa.
i IT STILL REMAINS A
FOREIGN COUN
'F um UNTIL
COTTN
t THY' TTTiniTR THIC
TRY' UNDER THE TARIFF LAWS UNTIL
CONGRESS HAS EMBRACED IT WITHIN THE
Urat-KAL KLVbltUE HKSTfcM.
Precedents.
At great length the court then discussed
similar cases; arising from previous acquisi
tions of territory by the United States, and
reviewed very fully former decisions of the
court involving questions such as are pre
sented in this case. The possessions In con
nection with which the main question in
volved in this case has risen are, Louisiana,
Florida. Texas, California and Alaska.
Each case was taken up In order and an
alyzed minutely. The court then presented
Its conclusions In the following language:
As showing tho construction put upon this
question by the legislative department, we need
only to add that section 2 of the Foraker act
makes a distinction between foreign countries
and Porto Rico by enacting that the same duties
shall be paid upon "all articles Imported Into
I'orto Rico from ports other than those ot the
United States." which are required by law to be
collected upon articles Imported Into the United
States from foreign countries.
From this resume of the decisions of this court,
the Instructions of the executive departments
and the above act of Congress. It Is evident that,
from 1S03. the date or Mr. Gallatin's letter, to
the present time there Is not a hred of au
thority, except the dictum In Fleming vs. Page.
for holding that a district ceded to and In the
possession of the United States remains for any
purpose a foreign country. Both these condi
tions must exist to produce a change of national
ity for revenue purposes. Possession Is not alone
sufficient, as was held In Fleming vs Page: nor
is a treaty ceding such territory sufficient with
out a. surrender of nossesslon. Hie nractlce of
the executive departments, thus continued for
more than half a century, I entitled to great
weight, and should not be disregarded nor over
turned except for eosent reasons, and unless it
be clear that such construction be erroneous.
But were this presented aa an original ques
tion we should be Impelled Irresistibly to the
same conclusion.
By article-11, section Z. of the Constitution, the
President Is given power, "by and with the ad
, pr0TWeil that two-thirds of the Senators present
concur," and by article , ''this Constitution and
the laws ot the United States which shall be
vice and consent of tne senate, to maxe ireaiies.
"'''' " it .? aassssvj , L-sttK:,;
i msKMM ?r
ssssBF vt rm .. m . s . J-
fcftiwr?y
F
made In pursuince thereof and all treaties made
or which shall be made, under tho authority of
th,. Lnlted butes, shall be the supreme law of
the land."
It will be observed lhat no distinction Is mado
as to the question of supremacy between law
and tnatles. except thit both are controlled by
the Constitution A law requires the assent of
b'Ah houses of Congress, and, except In certain
specified cases, the signature of the President.
A treaty Is negotiated and made bv the Presi
dent, with the concurrence of twothlrds of the
Senators present, hut each of them la the su
preme law of the land.
Ono of the ordinary Incidents of a tre-ity Is
the cession of territory. It Is not too much to
jay ii is mo ruie. ratner lhan the exception,
that a treaty of peace, following upon a war.
provides for a cession of terrlturv to the victo
rious partj The territory thus acquired Is ac
quired as absolutely aa If the anm-xallon were
made, as In the case of Texas and Hawaii, by
an act of Consress
IT KILLOUS FROM THI THAT IY RTI
5,LI5"?T,.OJ OF T,,B TREATY OK PARIS THE
J.'i-l' BWAMB TERRITORY OK TIIH
PNITElJ STATFS ALTHOUGH NOT AN OR-o''ilKPT-"""l'roJ'V
IN TUB TECHNICAL
SENSE OF TIIE WORD.
Applies) to evv Terrlturv.
It is true Mr. Chief Justice Tanej held In
hcott vs Sandford that the territorial clau of
the Constitution was conttned. and Intended to be
confined, to the terrllorv which at that time be
longed to or was clilmid bj the United Btates,
and was within their bound irtes. as -eltled by
the treaty with Great Hrltaln. and was not In
tended to applj to terrltoo nib'equentlj ac
quired. He seemed to differ In this construction
from Chief Justice Marshall, vvho. In speaking
of Florida before It ! ime n Mate, remvrked
that 11 continued to be n Hrrltory of the Lnlted
State- gov-rned br the territorial clause of the
constitution.
Hut whatever he the source nf this power. Its
uninterrupted exercise by Centres for a entur
and the repeated declarations of this court have
sf tiled the law that the rlM to acquire ter
ritory Involves the right to govern and dispone
of It In'leed. It Is fcarcelj n.i much tf v.ty
that there his not been a sessim cf Congress
since the terrltorj of Louisiana wns purchased,
tint that lnd has not enacted legislation based
upon the tissuiieii Authority to govern and con
trol the territories. It Is an authorllv which
nrires, not nece"arll from the territorial clause
of the Constitution, but from the necessities of
the cnsi. and from the InaMlltv "f the Mates
to act upon the subject. Under this power. Con
gress may deal with territory acquired bv
treaty: m ly administer its Gov eminent as It does
that of the District of Columbia: it miy or
ganize a hcal territorial government: It may
admit It as a State uion an equality with other
States; It dm sell ls public lands to Individual
citizens or m iv nonate them as horn-steads to
actual settlers. In short, when once acquired
b treaty, is belongs to the LnlteI states, and Is
subject to the disposition of Congress.
Terrltorj thus ai quired can remain a forelan
country under the tariff laws onlv upon one of two
theories: Either that the word "foreign" applies
to such eountrles as wern foreign at the time th
statute was enacted notwithstanding any subse
quent change In their condition, or that thev re
main rortlgn under the tnrlff laws until Congress
has formally embraced them within the customs
union of tho States. The first theory Is obvlously
untenable. While a statute U presumed to snak:
from the time of Its enactment. It embraces all
such persons or things as subsequent! fall with
in Its scope, and ceases to opply to such as there,
after fall without Its scope. Thus, a statute for
bidding the sale of liquors to minors applies not
onlv to minors In existence at the time the statute
was enacted, but to nil who are subsequently
iKirn; and ceases to apply to such as thereafter
reach their majority. sv. when the Constitution
of the United Stntes declares. In article I. section
11 that the States shall not do certain things,
this declaration operates not only upon the thir
teen original States, but uron all which subse
quently become such. And when Congress places
certain restrictions upon the powers of a terri
torial legislature, such restrictions cease to op
erate the moment such Territory Is admitted ns a
State. Rv parity of reasoning a country ceases to
be foreign the In-tant It becomes domestic.
So too. If Congress see fit to cede one of Its
newly acquired territories (even assuming that It
had the right to do so) to a foreign ponrer. there
could be no doubt that from the dar of such
rssIon and the delivery nf possession, such ter
rltorj' wculd become a foreign country, and be
reinstated as such under the tariff laws Cer
tainly, no act of Congress would be necessary
In such case to declare that the laws of ths
United States had ceased to applj to It.
Relation of Tariff I-aws.
The theory that a ciuntrv- remain foreign with
respect to the tariff laws until Congress has
acted by embracing It within the customs union
preiupposes that a country may be domestic
for one purpose and foreign for another. It may
undoubtedly become necessary for the adequate
administration of a domestic territory to pass
a special act. providing the proper machlnerv
and officers, as the President would have no nu
thor.ty. except under the war power, to admin
ister It himself- BUT NO ACT IS NEfESSARY
TO MAKE IT DOMESTIC TERRITORY IF
ONCE IT HAS BEEN CEDED TO THE UNI
TED STATES WE EXPRESS XO OPINION
AS TO WHETHER CONGRESS IS BOUND TO
APPIU-PRIATK THE MONEY TO PAY FOR
IT. This has been much discussed by writers
ipon ccrjtltulonal law. but It Is not necessary
to consider In this case, as, Congress, made
rrcrrpt arproprlatlon of the money stipulated In
the treat .
This theory also presupposes that territory may
he held Indefinitely by Uie United States: that It
may me treated In every particular, except for
tariff purposes, as domestic territory; that laws
may be enacted and enforced by officers of the
United States sent there for that purpose: that
Insurrections may be suppressed, war carried
on. revenues collected, taxes, imposed: In short,
that everything may be done which a Government
can do within Its own boundaries, and yet that
the territory rnay still remain a foreign country:
that this state of things mar continue forbears,
for a century even, but that until Congress en
acts otherwise It still remains a foreign country.
To hold that this can he done as a matter ot
law we deem to be pure Judicial legislation. We
find no warrant for It In the Constitution or In
the powers conferred upon this court. It Is true
the nonaction of Congress may occasion a tem
porary Inconvenience: but It does not follow that
coutts of Justice are authorized to remedy Ifby
lnvertlng the ordinary meaning of words.
If an act of Congress be necessary to convert
a foreign country Into domestic territory the ques
tion at once suggests Itself. What Is tbe charac
ter of the legislation demanded for this purpose?
Will an act appropriating money for Its purchase
be sufficient? Apparently not. Will an act ap-
MR. JUSTICE BROWN
ON THE DECISIONS.
REPUBLIC SPECIAL.
Washington, liny 27. Mr. Justice Brown,
who delivered the opinion of the Supreme
Court, In discussing the Porto Rlcan de
cisions Monday with The Republic corre
spondent, said:
"This utterance of the Supreme Court to
day is one of the most important ever ren
dered by this tribunal. Its effects will be
felt generations hence. There are two parts
to the verdict first, that Porto Rico is not
foreign territory; second, that Porto Rico
Is a Terrltoo of the United States, and
subject to all the laws and privileges which
have hitherto been exercised in our govern
ment of such possessions.
"The oft-repented inquiry whether the
natives of Forto Rico and our other newly
acquired Insular possessions can now enjoy
all ths privileges of cltlxcns of the United
Btates did not enter into the purview of tho
decisions to-day. That question must be de
termined later. In the meantime tho na
tives of Porto Rico can enjoy all tbe rights
which are granted to the citizens of Ari
zona, New Mexico, Oklahoma and Alaska.
"This decision acknowledges that Porto
Rico is eligible to statehood, and implies
that when she fulfills tbe demands required
for admission into the Union Bhe may be
granted all the rights which follow the flag.
Until that time, however, Porto Rico will
not be entitled to all the privileges which
seem to be warranted by tha protection of
United States flag.
"As to the revenue question, the verdict
of the Supreme Court does not cover all
the contentions. This much la certain,
however, that all the revenue collected un
der protest from the Islanders from April
11. 1899. to the passage of the Foraker act
must be refunded to them. This date,
April 11. Is the day on which Porto Rico
became a Territory of tho United States,
according to our decision to-day. It is the
day on which the Senate ratified the
treaty of peace between our country and
Spain.
About the legal status of the Porto
Rleans. It is similar to the legal status of
New Mexicans. The status of the Filipinos
is not embraced In our decision of to-day,
either directly or Indirectly. That question
will be considered next fall."
DISSENTING OPINIONS
IN THE DE LIMA CASE.
Justice MeKenna. read a dissenting opin
ion in the De Lima case, stating that Jus
tices Shlras and White Joined In his views.
The majority, he said, proceeded on tho
simple proposition that to settle whether
Porto Rico Is "foreign country" or "domes
tic territory" Is to settle the controversy In
litigation In the particular case. But, in
his view, It could not turn on so easy a
definition. Between the extremes there were
other relations which Porto Rico might
sustain to the United States, and It could
be determined that Porto Rico occupied one
of these other relations, and ita products
hence were subtect to duties.
He cited the cases of United States vs.
Rice and Fleming vs. Page, referred to by
the maJarlty, and said the latter attempt
ed to reconcile them and dismissed a large
part of Chief Justice Taney's decision In
the Page case as dicta. He thought both
cases reconcilable on the ground that both,
recognized Inevitable conditions. Such rec
ognition made government provident and
haphazard. It left to the executive and
the legislative departments that which per
tains to them. " . . , ,
The opinions expressed In Fleming vs.
Page that the boundaries of our country
could not be enlarged or restricted by the
advance or retreat- of armies, and that
whether duties should be levied depended
on Congress granting authority, should bo
accepted as wise and considerate of the dif
ferent functions of the executive, legislative
and Judicial departments; and of their Inde
pendence. Why should It then be discarded as) dic
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Kt.aks, Raet Glassas,
Thermamitars, laranatara.
proprlatlng the duties collected upon imports to
and from suh country for the benefit of Its COT
ernment be sufficient? Apparently not. Will acta
making appropriations for its postal service. SOT
the establishment of lighthouses, for the main
tenance of quarantine stations, for er-ctlns; pubilo
buildings, have that effect ? mil sn act estab
lishing a complete local government, but with
the reservation of a right to collect duties upon
commerce, be adequate for that purpose? l?c-iecf
these, nor nil together, will be sufficient, it tne
contention of the Government be sound, alncw acta
embracing all these provision have been pasfeel
In connection with Torto Itlco. and It Is Insisted
that It is still a foreign country within the mean
ing of the tariff laws.
v. E ARK UNABLE TO ACQUIESCE IN THIS
ASSUMPTION THAT A TF-lthlTORY MAT BB
AT THE SAME TIME BOTH FOREIGN AND
DOMESTIC.
Jadgment Reversed,
A single furth-r point remains to be cemslderetl:
It Is insisted that an act of Congress, passed
March 24. 0t (31 Stat., lit), applying for th
benefit of Forto Rico the amount of customs reve
nue received on Importations by the United
States from Porto Rico since the evacuation of
Porto KIco by the Spanish forces; October IS.
lK)g. to January 1. 1S00, together with any fur
ther customs revenues collected on lmportatlona
from I'orto Rico since January 1. 1900, or shall
hereafter be collected under existing law. la a
recognition by Concieea ot ths right to collect
such duties a upon Importations frtn a forebm
country, and a recognition of the tact that Forto
KIco continued to be a foreign country until Con
gress embraced It within customs union. It m-T
be seriously questioned whether this Is anythlns
more than a recognition of the tact that there
were moneys In the territory not subject to ex
isting appropriation laws.
Perhap we may go farther and ray that ISO
far aa these duties were paid voluntarllT, and
will out protest, the legality of the payment waa
Intended to be recognized; but It can clearly' navs
no retroactive effect aa to moneys tlisntofoi-fpald
under protest, for which an action to iscuver
tzck had already been brought. Aa th actje-i
In this case was brought March 13, 1M. eleven
days before the act was passed, t rltht to
recover the money sued for could not bs taken
away by a subsequent act cf Congress. PhUntHTs
sue In ass-mtslt tor money which the collector
has In his hands Justly and equitably belecur
Ing to them. To say that Coneress could by a
subsequent act deprive them of the right to
ptcsecute this action would be bevond Its pow
er In any event. It shculd not be mtarpretsd so
a-. to make It retroactive.
WE ARE. THERIHDRE. OP THE OPINION
THAT. AT THE TIME THESIS DUTIES WBRC
LEVIED PORTO RICO WAS NOT A IUR
EIGN COUNTRT WITHIN THB MEANIITO7r
-HE TARIFF LAWS. BUT A TEJUUTOFtT W
THE UNITED STATES: THAT THB DCTTBB
V.FKE ILLEGALLT EXACTED, AKS THAT
THE PLAINTIFFS .RE EOTITTKD TO RI
CO VER THESI BACK.
The Judgment ot tne Circuit Court Cor Us
Scuthera District of New York Is, tneiefow. re
versed, and the case Is -emended to that court
for ft-rther proceedings In consonance with tola
opinion. '
tum? If constancy of Judicial declssoa la
necessary to regulate the relations and -
property rights of individuals. Is not
stancv of decision the more necesaarr
It may Influence or has influenced tha ac
tion oi a nation!
If the other great departments ot th
Government must look to the Judicial for
light, that light should burn steadily. .It
should not. like the exhalations ot zoanfe,
shine to mislead. Distinctions, ha rontid
ed. always had been recognized betwsssm
territory acquired and that which was wltA-.;
In the acknowledged limits of tba Unltad)'
states. -
Justice MeKenna then called attsntloa to .
the fact that after California's armsaraflcs.
our customs laws had been extended enrar
It, and asked why this was nsoassaiy if
they applied ot their own force.
In conclusion. Justice MeKenna said tliasa
considerations, to his mind, suggested tba 5
dlfflcultles of any such general and swam- ;
Ing view as had been laid down by tha ,
majority. If correct, neither wa nor tba t
rnnmiere1 nation would have) anv eti-i-a- fjs
the new situation we would stand bound
l, n t.1..1a !!, , 11. SaS.l at.Hja
l (a 4ICl,flC0S .O.WU4... . u fuwto MaMaHa
therefore, he thought, was essentially la
lslatlve and not ludlcl-L
Justice Gray announced that ha II
dissented from the majority opinion.
Ing briefly that Its Judgment appeared to .
him Irreconcilable with tha .unanimous .
opinion of this court in Fleming vs. Page,
and with the opinions of the majority-of
the Justices In the case to-day decided of
Dowries vs. Bldwell.
HlMoarl Facile Extsaslam.
REPUBLIC SPEOAU
Topeka, Kas.. May 2T. The Missouri Pa
cific will extend Its line from I-enora, to
Northwest Kansas, to Denver. A corpo at
engineers began locating tha Una to-day.
This will give from St. Joseph. Ha, and all ;
Northern Kansas points a direct Una t
Denver.
Acquitted of KUllas Pa
REPUBLIC SPECIAL.
Ardmore. I. T May 27. flam Aabtoa '
acquitted to-aay at ranrs vauay ox J
.sTOAimasier xiumuasai s,i 1011.
This was the eleventh murder
this term before Judge Thorns, and tba
only acquittal.
KNEW THE WAY OUT.
Made a Study of His Food.
It is not always that lbs user of food i
daratanda about that food, but a entlM
ln Cincinnati writing about Grape-NutJ u
presses nimseii periecuy. i-e says. a. i
lnesa man devoting himself to hard ieub
labor requires different food than a man da-i
ing muscular work. I became aware of a
dull, heavy feeling In my head day by day!
which did an untold damage to my wotlt;
Verdict. Intestinal Indigestion; punlsbinatst, !
a severe diet list, leaving out starchy tootB,-
sugar ana xai.
Up to this time, with the most prsrlsa :
care In cooking, the ordinary breakfast food',
mma to the table a rvastv. starchy maa.J
Added to that was sugar and more or -taaf
o-hitA hrenri which rave an exceaa
starchy food that could not be digested. Tbta f
Indigested mass passed Into tbe Intestlivsay
creating gas and all of the distressing synty
toms. both of body and brain.
I was put on Grape-Nuts Stood for tba,--;
reason that it Is made of selected part t.f
wheat and barley, thoroughly cooked atii
the factory, giving to tne ooay tne starcoy v
part of the food (.which Is necessary). pca-
rtl-pBtoH that Is. turned Into de-xtrosar or,.
sssssssssstVsssBlsK aSsss-sssriP-lBsssV
iKin, snear. This furnished tXk sweet needs.". I
ed without the use of cane sugar, and gavwl
me the starchy principle ot food already!
passeu into tne secuuu t-vuuitiv-u, d.sitiijt ,
the same manner as a healthy body dlgaa
it-
. . --.- -t -v..,- . .- Ma. .J
AlLCr eailUg VirUpsr-aSUIa, -Wa Ob B-nJ. aaaS-aa J
m a ..A .i ..a.KI. Inia,.i,aaaaw ..a iS
ns. health and I also discovered the reason;:!
why the claim made on the package Is txa. 'A
. .. ..-I -t Aa-Vr.a aataaaa ,,." I
inul. OHO JUUUU Ul vajE-.si,a, .imnjjb,
perfectly aosoruea oy tne ooay, wiu s
more, nutrition than ten nounda esfll
rhpnt nr hread. imterfectly dls-sated.1 1
assure anyone that a week cvrtendaj-r j
conscientious use ox urspe-xsur-s .wist iw-r-w,
far more convincing testimony ussi
wrltten words. I subscribe rnyseh a'l
ful consumer. Please do no. Embatsl
name." Any one. who will write to tbe 3
urn Cereal Co., Ltd., Battle Creek, MM
and Inclose stamp, can Be ioppiMowaWB '-1
name and address. T -
5- -feJ
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